HKSAR v. LI TAK SHING

DCCC 623/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 623 OF 2016

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Reasons for Sentence

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1.  The defendant has been convicted of one offence of indecent assault upon his own plea of guilty to that offence and his agreement to the facts presented by the prosecution.

2.  The defendant is a 64-year-old man, and the particulars of the offence allege that on 24 April this year, in a shop, he indecently assaulted a female.

3.  The facts show that the female in question was a Form 5 student aged 16, and the shop referred to in the charge is a massage parlour in Ma On Shan.  The young lady was feeling tired and went in for a massage at the shop, where the defendant was working, and she initially requested a massage service which would have involved massage to the head, shoulders and neck.

4.  The defendant was tasked to perform that massage.  He did so, and then indicated that he would provide an oil massage to her back.  He then proceeded to ask her to remove parts of her clothing, then the massage continued.  There are detailed facts as to how that massage proceeded, but for the purpose of sentencing, I will say that it involved massaging and assault to intimate areas of the victim, including her breasts and private parts, and including the insertion of digits into her private parts for some five minutes; and at the time that that occurred, the victim shouted out, “Pain,” and indicated she said no, and did not consent, yet the defendant continued and ignored her.

5.  The whole massage lasted some 45 minutes.  The victim was clearly distressed by this assault upon her and immediately informed members of her family, and eventually, shortly after, the police were informed.

6.  The defendant, under caution, admitted he had used his hands to squeeze the victim’s breasts and inserted his fingers into her private parts.  He indicated he had done that because he had felt sexual excitement.

7.  The defendant’s antecedents have been admitted. As I said at the beginning of this exercise, he is aged 64 years old, educated to Primary 2 level in Haifeng in China.  He has worked as a construction site worker and other such jobs, and had been unemployed since June of 1997.  He had been injured in a previous job as a plasterer, and is in fact diagnosed as 30 per cent disabled.  He has also had cataracts and is a recipient of long‑term medication.

8.  He has family.  He is married, and has two daughters - they are aged 27 and 25 - and two sons aged 29 and 23.  He lives with his wife and daughters and younger son in Ma On Shan.

9.  He does have a criminal record which is not relevant to today’s sentencing, being involved in certain Immigration offences back in 1993 and 1994 which led to suspended sentences of imprisonment which were not activated.

10.  Because of the nature of the offending by the defendant, I obtained a psychological report on him and also, because of his history of disability, I obtained a medical report.  The medical report shows examination of cardiovascular, respiratory and abdominal systems as unremarkable.  He has had a head injury in June 1997, cataract surgery in 2015 and again in January 2016, performed on both his left and right eyes.  He is currently under follow-up, but his health condition is stable, so there is not necessarily any cause for concern there.

11.  There is a psychological report dated 7 October 2016, again which deals in some detail with the background to the offence and the clinical impression.  The major matter to be taken away from that report is the conclusion of the psychologist that the defendant’s risk of reoffending is assessed to be low.  It is also said that his supportive family would be a protective factor for him against reoffending.

12.  When the court considers sentence in a matter such as this, clearly the risk to the public is an important factor to be considered, and I must take on board the expert advice that such risk is low.

13.  In mitigation, matters referred to were the lack of relevance of the past convictions to the present offence, so that the offence can be said to be out of character.  Furthermore, the conclusion of the psychologist’s report that the defendant has no what are described as paedophile tendencies and has a low risk of reoffending would also say that this offence is out of character.

14.  He has a supportive family, and there are mitigation letters from them which speak well of him.

15.  The defendant pleaded guilty to this offence at an early opportunity, and the defendant’s plea of guilty has meant that the victim has no need to come to court today.

16.  Matters that the court must consider are the large age difference between the defendant and the victim; that the offence is aggravated by the nature of the assault, which involved the penetration of the victim; the young age of the victim, who can still be described properly, I think, as a young person; and also the fact that the case involves a breach of the trust imposed by the victim on the defendant.  When she entered that location, she must have anticipated that she would be treated in a respectful manner and the physical acts upon her would be lawful, and she has the right to expect that.  Also a fact to be considered is the considerable distress that must have been caused to this young lady by such an unpleasant experience.

17.  The offence to which the defendant has pleaded guilty has a maximum sentence of 10 years’ imprisonment.  In previous cases - there is a case called HKSAR v Tsang Ue Sum CACC 32/2010 - it was pointed out that sentencing for offences of this nature is a particularly fact-sensitive exercise and covers a wide range of conduct.  It said:

“In those circumstances, references to sentences imposed in other cases are usually of very little assistance to the court.”

18.  The other case worthy of mention is HKSAR v Chan Ching Ho [2003] HKLRD 476, where Vice‑President Stuart-Moore laid down sentencing considerations when sentencing in indecent assault cases:

“Such factors for sentencing were to deter others from committing similar offences, to mark public abhorrence of such crimes, and to address the grievance suffered by the victim, relatives and friends.”

19.  That case did involve indecent assaults on young children, but the factors to be taken into account include the defendant’s physical acts of indecency, the time factor involved, and whether there is any breach of trust. 

20.  As I have indicated, the physical acts of indecency involved penetration; the time factor, which was over some five minutes while that occurred, and part of a 45-minute massage; and finally, whether there is a breach of trust, I think it can be fairly said that there was some element of breach of trust in this case.

21.  I must also take into account the young age of the victim and the distress caused to her, balanced against the defendant’s age and the fact that he appears to have taken advantage of a situation that presented itself.

22.  It was interesting to note that in mitigation it was said that his family were not aware he had taken up this employment. Clearly he had little qualification for working at this shop.

23.  For the purposes of sentence I have taken those factors into account when considering the appropriate sentence.  I do consider that a sentence of imprisonment must be imposed upon the defendant, and that sentence of imprisonment must reflect the factors that I have said in my reasons.

24.  Taking an overall view, I consider the appropriate starting point for sentence in offences such as this is one of 18 months’ imprisonment.

25.  The defendant is entitled to full credit for his plea of guilty, which reduces that sentence to one of 12 months’ imprisonment.